Tag Archives: IHL

Before reading these 7 points on International Humanitarian Law (IHL) please remember that IHL is not ‘best practice’ in a war zone, nor a reflection of my aspirations. It is merely a set of legal minimum standards that warring parties must abide by, nothing more, nothing less.

1. Hamas’ rockets attacks are often, by their very nature, violations of IHL.

The rockets fired by Palestinian armed groups such as the military wing of Hamas or Palestinian Islamic Jihad are often Russian-designed “Grad” rockets. These are widely considered to be so inaccurate that they are incapable of being targeted enough to distinguish between military and civilians. Combine this with the fact that they often launched toward highly populated areas means that they are often, by their very nature, violations of IHL.

2. Neither Israel nor Hamas are prohibited by IHL in fighting in Gaza but the density of the civilian population and infrastructure does impose extra responsibilities on them.

IHL demands that all parties in the conflict “take all feasible precautions” of loss of civilian life and damage to civilian objects (houses, hospitals, mosques etc – I will come onto this more later). Fighting in such an area undeniably makes it harder for the warring factions to distinguish between civilian and military targets but it does nothing to reduce the obligation of the parties to make these checks. Where there is doubt, the assumption has to be that it is civilian and thus protected.

In the Gaza/Israel example, Hamas has a responsibility to ensure that it avoids locating potential military targets in close vicinity to civilians. It also prohibits the use of human shields – something which has been seen in previous conflicts but so far there has been no confirmed evidence that this has happened in the latest fighting.

However, even if Hamas is keeping weapons within civilian areas or buildings, this does not remove any of the obligations imposed on Israel under IHL to take into account the risk to civilians when seeking out these otherwise legitimate military targets.

3. Although Israel normally sends warnings while Hamas doesn’t, this doesn’t impact on their responsibilities to civilian populations.

Israel has widely publicised in this latest round of fighting that it sends ‘knock on the roof’ explosions as warnings that larger attacks are soon to be happening while Hamas rarely if ever sends warning of rocket fire.

IHL requires that warring parties give “effective advance warning” of attacks that may effect civilian populations. Because of the density of the civilian population in Gaza this means in practice that virtually all attacks should have such warnings. The idea is that the warnings would allow for civilians populations to leave the area.

However, if the civilian population refuses to leave, they are still protected persons under IHL. In short, even after delivering an effective warning, Israel must still take all measures to ensure civilian life is protected.

4. It is not just people who are protected but also civilian infrastructure such as hospitals, schools and yes, even the homes of Hamas officials.

Israel has openly stated that in this latest round of fighting they have targeted the homes of Hamas officials. While IHL allows for the targeting of military leaders who are ‘in action’ it does not allow for the targeting of leaders at any time. Attacking the home of a Hamas official who was not present at the time would be an unlawful attack on a civilian object that if carried out intentionally would constitute a war crime.

Something similar applies for schools or religious buildings such as Mosques. However, if any of the above are being used for military purposes, such as a military headquarters or an arms store, then they become legitimate military targets.

The exception to this simple ‘it’s civilian unless you show it is being used for a military purpose’ rule are medical facilities that hold a special place status under IHL.

Like all the above they are considered civilian targets unless they are used for a military purpose. However, Israel then has a further obligation of showing that they were being used to cause them actual harm before they can become a legitimate target.

5. Collective punishment is a war crime

Undertaking actions that aim to punish a population as a whole for things that they have not personally done is a war crime.

6. Why the is no Israeli or Palestinian being dragged to the International Criminal Court (ICC) for these violations of IHL?

The ICC has a mandate to investigate, charge, and try people suspected of genocide, crimes against humanity, and war crimes committed after July 1, 2002.

Quite a few Israelis and Palestinians fit this description. However, the court can only exercise jurisdiction over these crimes if: The crimes occurred in the territory of a state that is a party to the ICC treaty; The person accused of the crimes is a citizen of a state that is a party to the ICC treaty; A country that is not a state to the ICC treaty accepts the court’s authority for the crimes in question by submitting a formal declaration to the court; or The UN Security Council refers the situation to the ICC prosecutor.

At the time of writing neither Israel nor Palestine are a party to the Rome Statute, the treaty establishing the ICC. Israel has signed the statute but not ratified it. Palestine submitted a declaration in 2009 to accept the courts mandate but this was rejected at the time over the ambiguous nature of whether or not it was/is a state. Since then, Palestine has been voted in to the UN has a non-voting member state (confirming in the eyes of the international community that it is a state). However, since that has happened Palestine has not sought the court’s jurisdiction or signed and ratified the Rome Statute.

Thus, in short, the court’s jurisdiction does not cover Israel/Gaza.

7. There are lots of people and organisations who have written, researched and published on this issue that are a lot better sources than me.

And I suggest you read them. For more on IHL, human rights and the Gaza/Israel conflict:

The on-going Israeli military operation in Gaza is now over a week old. In this week, 172 people have been killed according to Palestinian officials. The UN estimates that 77% of those killed are civilians. Tens of thousands of Palestinians have sought refuge in UN facilities within the Gaza strip.

In the same time period nearly 1,000 rockets have been fired from Gaza according to Israeli sources.

It is civilians who are dying in the Gaza strip. It is also civilians who are living in near constant fear of rocket attacks across the south and west of Israel. These attacks that the last week has seen once again constitute a clear violation of International Humanitarian Law (IHL) from both ‘sides’.

This house was owned by Ahmad Kaware’a and his sons. The oldest of which is active in the military wing of Hamas. Even if no harm came of civilians in this attack, it is still unlawful as the house does not constitute a military target.

“The targeting of civilian homes is a violation of international humanitarian law unless the homes are being used for military purposes. In case of doubt, buildings ordinarily used for civilian purposes, such as homes, are presumed not to be legitimate military targets”

The last week has also seen an increase in the number of rockets fired from within Gaza towards the south and west of Israel. Armed groups within Gaza including Hamas and Palestinian Islamic Jihad have continued to fire rockets either indiscriminately or with the specific aim of targeting civilians. Although no deaths have been reported from over 1000 rockets launched, by definition these rocket attacks are a violation of the principle of the distinction.

While some violations of IHL are new, many are much older than the recent media attention. For example, Israel’s policy of blockading Gaza is one that the ICRC has described as collective punishment which is in clear violation of Israel’s obligations under IHL.

In the last couple of days Oxfam has sent out another emergency appeal as the already bleak humanitarian situation deteriorates further. As an occupying power, Israel has a clear responsibility to the citizens of Gaza that it is too often neglecting.

Once again violence in this troubled region is leaving civilians on the front line of the conflict. IHL has at its heart the intention to protect civilians at times of conflict. For this to happen, both Israel and armed Palestinian groups need to respect these very basic standards.

I was referring to the fact that some armed groups have claimed responsibility for the killings (inc an ISIS affiliated group, and Sarayat al-Quds, the military wing of Palestinian Islamic Jihad). If it is shown that one of these groups, or Hamas as the Israeli government keeps claiming, is responsible, then the killings would constitute a war crime.

Almost immediately comments began to follow that status update with comments on context and the atrocious backlash that the Palestinian population has suffered after the abductions in recent weeks. Comments came thick and fast about what we have already witnessed: Israeli forces’ arresting hundreds of Palestinians, raids and damage of property, enforced restrictions on freedom of movement, the continued widespread use of administrative detention and of course a series of killings.

From these comments I assume that people felt one of two things. Either that they thought that by condemning one act of violence I was somehow tacitly condoning another. And/or that some context was needed to the killings of the teenagers for those who read my facebook status updates to understand ‘the other side of the story’.

Whilst I strongly reject the first (for hopefully obvious reasons) the latter needs a bit more exploration.

I strongly agree with the assertion that context is important in understanding violence and human rights abuses. It is essential. I would be fascinated to hear anyone argue anything different. Equally, as a human rights activist the principle of impartiality is important – so I would be equally as passionate about condemning killing of civilian x as I would of civilian y.

The perpetrator is not important, but the context is.

With this said, why then would my facebook status not include the ‘other side of the story’ that so quickly emerged in the comments below?

Firstly, like so many, that status came as a result of reading about and then empathizing with all those affected by the killing of the three boys. It was a knee jerk reaction to a deplorable act. The words that came to hand was that of emotion and human rights, “deplorable act” “war crime” etc.

This facebook status wasn’t an essay, an analysis or trying to make any wider point. It was simply a comment on a deplorable act to illustrate that International Humanitarian Law condemns such behaviour.

Secondly though there is also an issue around comparing and/or contrasting people’s suffering. Not only do I find this morally uneasy but also at times pragmatically unhelpful. I am not convinced that trying to compare levels of suffering is helpful to anyone. In contrast, I can see others use the language of others suffering to perpetrate further atrocities. For me, the death of anyone’s loved one deserves a mark of respect, not a reduction of that life into a statistic to be used and abused for political ends.

With that said, a balance at this point then has to be struck. Clearly those in power are not following this line of thought and are already using these tragic deaths to justify furthering a pattern of events that have been occurring for much longer than the last three weeks.

The Israeli housing minister, Uri Ariel, has called for the extrajudicial executions of leaders of Hamas and for Israel to “start a wave of construction in the settlements in response to the murder of the abductees.” – something which in itself would be the cause of forced displacement, a myriad of human rights violations and is a flagrant violation of international humanitarian law (IHL).

So simply ignoring the context isn’t sufficient either. Mourning the loss of innocent civilians whilst watching on at the on-going violations of others is as equally morally and pragmatically undesirable.

The challenge for myself, and others then looking to comment on these killings and the atrocious backlash being experienced across the Occupied Palestinian Territory, is how we speak out in an equal and fair way without reducing people’s suffering to just statistics or worse, campaigns fodder.

This is something that I am still struggling with and thinking about. For now, I use human rights language. Hence my response as I tried to keep it simple when responding to one friend who asked about the killings of Palestinian children:

While some might think of human rights language as cold and legalistic, I think of it as a powerful liberal tool that encapsulates the importance of the individual. It is not always perfect but it does allow space for people to expand on individual violations when they want.

This morning I chose expand on the deplorable killings of three Israeli teenagers. This has no bearing on my thoughts on the other violations occurring in the region.

One year after the upsurge in fighting in Gaza neither side has conducted sufficient, impartial and independent investigations into alleged violations of International Humanitarian Law says Amnesty International.

Amnesty highlighted the case of 13 year old Mahmoud who died in an Israeli drone strike. Mahmoud was one of at least 30 children to die during the 8 days of fighting. Mahmoud was of course also one of 70 or so civilians to die in that 8 day period.

Failing to distinguish between civilian and combatant is a violation of International Humanitarian Law. The nature of Mahmoud’s death is one of 65 incidents Amnesty are calling on the Israeli authorities to investigate.

B’Tselem, an Israeli human rights group, reported on Operation Pillar of Defence and highlighted that Israeli forces made considerable efforts to avoid civilian casualties but that on a number of occasions “the military may have acted unlawfully”.

Amnesty International however in their annual report go further commenting that:

“The Israeli air force carried out bomb and missile strikes on residential areas, including strikes that were disproportionate and caused heavy civilian casualties. Other strikes damaged or destroyed civilian property, media facilities, government buildings and police stations. In most cases, Israel did not present evidence that these specific sites had been used for military purposes.”

Specifically, Amnesty has called for investigations into 65 cases of “alleged misconduct” by the Israel Defense Forces (IDF) during Operation “Pillar of Defense”.

In their latest statement, Amnesty has also condemned Hamas for their “indiscriminate” use of rockets. During the conflict it is thought that as many as 1,500 rockets and mortars were fired into Israel in the 8 day period.

The case of David Amsalem who lost his 24 year old son to a rocket strike was highlighted to illustrate the fact that Hamas’ arsenal, by its very nature, cannot distinguish between civilian and combatant – something which in itself is a violation of International Humanitarian Law.

The conflict left more than 165 Palestinians (more than 30 children and some 70 other civilians) and 6 Israelis (including 4 children) dead.

Neither side has launched sufficient, impartial and independent investigations into these alleged violations of International Humanitarian Law leaving thousands morning with no access to justice and reinforcing a sense of impunity on both sides.

If the UK government proceed and arm Syrian rebels, the very minimum they have to do is provide detailed answers to Amnesty International activist Kristyan Benedict’s 10 questions.

“While we have no immediate plans to send arms to Syria, [the ending of the arms embargo] gives us the flexibility to respond in the future if the situation continues to deteriorate and worsen,”

This was William Hague’s response to the EU’s failure to reach agreement around renewing the arms embargo on Syria.

The New York Times summarized the in rifts within the EU over arming rebels saying:

“efforts to ease the arms embargo, led by Britain, exposed deep rifts on Monday over the issue of arming the rebels… Austria, the Czech Republic and Sweden came to the meeting strongly opposing arms shipments. They distrust large parts of the Syrian opposition and said they feared that the weapons would end up in the hands of jihadist groups.”

Many met this news with dismay:

@OwenJones84 As Charles Glass said: "Syria is a house on fire, and the international community have turned up with flamethrowers"

Frans Timmermans, the Dutch Foreign Minister was unequivocal in his government’s analysis of the situation saying:

“The only effect you could have — let’s be realistic about this — is that it will stimulate the Russians to provide even more arms,”

Timmermans hits on the same point that Kristyan Benedict asks in his article “10 questions“. The last of these 10 questions to the UK government about arming the Syrian opposition reads:

“What is the likelihood of an arms race occurring from increased arms supplies to the armed opposition?”

It is an important question.

It is widely understood that the UK and France are eager to provide armed support to the rebels. As such, the crux of Benedict’s questions, “what adequate safeguards would the UK Government put in place to ensure any arms transferred would not be used to commit human rights abuses.” is more relevant than ever.

If the UK government does go ahead and arm the rebels, despite the very vocal criticism, the very minimum it has to do is to be able show it can effectively answer each of Benedict’s questions. How will they ensure rebels use the weapons in line with IHL? How will they ensure they do not fall into the wrong hands? etc etc…